House of Commons Amendments

House of Commons

Session 2008 - 09
Internet Publications
Other Bills before Parliament

Public Bill Committee: 18 June 2009
219

Equality Bill, continued

‘(1)
A person has the protected characteristic of gender identity if the person is or is

perceived to be—

(a)
a person intending to undergo, undergoing, or having undergone gender

reassignment, where gender reassignment means a process which is

undertaken under medical supervision for the purpose of reassigning the

person’s sex by changing physiological or other characteristics of sex,

and includes any part of such a process;

(b)
a person living permanently in the gender role different from that

expected of a person of their recorded natal sex;

(c)
a person who has, by virtue of the Gender Recognition Act 2004 (c.7),

received recognition of their acquired gender for all legal purposes; or

(d)
a person who has a gender identity that is different from that expected of

a person of their recorded natal sex, provided that behaviour is not

unlawful or offensive.

(2)
A reference to a transgender person is a reference to a person who has the

protected characteristic of gender identity.

(3)
In relation to the protected characteristic of gender identity—

(a)
a reference to a person who has a particular protected characteristic is a

reference to a transgender person;

(b)
a reference to persons who share a protected characteristic is a reference

to transgender persons.’.

Disability pay gap information

Mr Mark Harper

John Penrose

Mr John Baron

NC9

To move the following Clause:—

‘(1)
A Minister of the Crown may by regulations require employers to publish

information relating to the pay of employees for the purpose of showing whether,

by reference to factors of such description as is prescribed, there are differences

in the pay of employees who have a disability and employees who do not have a

disability.

(2)
This section does not apply to—

(a)
an employer who has fewer than 250 employees;

(b)
a person specified in Schedule 19.

(3)
The regulations may prescribe—

(a)
descriptions of employer;

(b)
descriptions of employee;

(c)
how to calculate the number of employees that an employer has;

(d)
descriptions of information;

(e)
the time at which information is to be published;

(f)
the form and manner in which it is to be published.

(4)
Regulations under subsection (3)(e) may not require an employer, after the first

publication of information, to publish information more frequently than at

intervals of 12 months.

Public Bill Committee: 18 June 2009
220

Equality Bill, continued

(5)
The regulations may make provision for a failure to comply with the

regulations—

(a)
to be an offence punishable on summary conviction by a fine not

exceeding level 5 on the standard scale;

(b)
to be enforced otherwise than as an offence, by such means as is

prescribed.

(6)
The reference to a failure to comply with the regulations includes a reference to

a failure by a person acting on behalf of an employer.’.

Representative actions

Sandra Osborne

Mr David Drew

NC10

To move the following Clause:—

‘(1)
The Minister shall make regulations to permit the Equality and Human Rights

Commission or a registered trade union to apply to a court or tribunal as

appropriate for a representative action order in relation to a defined class of

persons (“the class”) who would benefit from the litigation of rights, or common

issues in relation to rights that members of the class may have as a result of the

provisions of this Act.

(2)
The regulations shall make rules in relation to the making and termination of a

representative action order and its conduct.

(3)
Such rules shall provide for hearings to be conducted in private when it is

necessary for the issues between the members of the class and the Equality and

Human Rights Commission or a registered trade union to be resolved and those

issues are subject to legal professional privilege shared by members of the class.

(4)
Such rules shall make provision for the hearing of any issue as defined in

subsection (3) to be undertaken and managed by a different judge or tribunal from

the judge and tribunal that have the responsibility for determining the rights or

common issue in relation to rights, of the member class.’.

The right to equality

Lynne Featherstone

Dr Evan Harris

NC11

To move the following Clause:—

‘(1)
In this act “the right to equality” means the fundamental rights and freedoms set

out in subsections (2) to (4).

(2)
Everyone is equal before the law and has the right to the equal protection and

benefit of the law.

(3)
A public authority may not discriminate against anyone on any ground or

combination of grounds such as colour, race, nationality, ethnic or national origin,

Public Bill Committee: 18 June 2009
221

Equality Bill, continued

language, gender identity, sex, sexual orientation, disability, religion or belief,

and age.

(4)
Subsections (2) and (3) do not preclude any law, programme or activity that has

as its object and outcome the amelioration of conditions of disadvantaged persons

or groups including those that are disadvantaged because of colour, race,

nationality, ethnic or national origin, language, gender identity, sex, sexual

orientation, disability, religion or belief, and age.’.

Interpretation of legislation

Lynne Featherstone

Dr Evan Harris

NC12

To move the following Clause:—

‘(1)
So far as it is possible to do so, primary legislation and subordinate legislation

must be read and given effect in a way which is compatible with the right to

equality.

(2)
This section—

(a)
applies to primary legislation and subordinate legislation whenever

enacted;

(b)
does not affect the validity, continuing operation or enforcement of any

incompatible primary legislation; and

(c)
does not affect the validity, continuing operation or enforcement of any

incompatible subordinate legislation if (disregarding any possibility of

revocation) primary legislation prevents removal of the incompatibility.’.

Declaration of incompatibility

Lynne Featherstone

Dr Evan Harris

NC13

To move the following Clause:—

‘(1)
Subsection (2) applies in any proceedings in which a court determines whether a

provision of primary legislation is compatible with the right to equality.

(2)
If the court is satisfied that the provision is incompatible with the right to equality,

it may make a declaration of that incompatibility.

(3)
Subsection (4) applies in any proceedings in which a court determines whether a

provision of subordinate legislation, made in the exercise of a power conferred by

primary legislation, is compatible with the right to equality.

(4)
If the court is satisfied—

(a)
that the provision is incompatible with the right to equality, and

(b)
that (disregarding any possibility of revocation) the primary legislation

concerned prevents removal of the incompatibility,


it may make a declaration of that incompatibility.

Public Bill Committee: 18 June 2009
222

Equality Bill, continued

(5)
In this section “court” shall have the same meaning as the meaning given in

section 4 of the Human Rights Act 1998.

(6)
A declaration under this section (“a declaration of incompatibility”)—

(a)
does not affect the validity, continuing operation or enforcement of the

provision in respect of which it is given; and

(b)
is not binding on the parties to the proceedings in which it is made.’.

Public authorities

Lynne Featherstone

Dr Evan Harris

NC14

To move the following Clause:—

‘(1)
It is unlawful for a public authority to act in a way which is incompatible with the

right to equality.

(2)
Subsection (1) does not apply to an act if—

(a)
as the result of one or more provisions of primary legislation, the

authority could not have acted differently; or

(b)
in the case of one or more provisions of, or made under, primary

legislation which cannot be read or given effect in a way which is

compatible with the right to equality, the authority was acting so as to

give effect to or enforce those provisions.

(3)
In this section “public authority” includes—

(a)
a court or tribunal, and

(b)
any person certain of whose functions are functions of a public nature,


but does not include either House of Parliament or a person exercising functions

in connection with proceedings in Parliament.

(4)
In this Act the factors which may be taken into account in determining whether a

function is a public function include—

(a)
the extent to which the state has assumed responsibility for the function

in question;

(b)
the role and responsibility of the state in relation to the subject matter in

question;

(c)
the nature and extent of the public interest in the function in question;

(d)
the nature and extent of any statutory power or duty in relation to the

function in question;

(e)
the extent to which the state, directly or indirectly, regulates, supervises

and inspects the performance of the function in question;

(f)
the extent to which the state make payment for the function in question;

(g)
whether the function involves or may involve the use of statutory

coercive powers;

(h)
the extent of the risk that improper performance of the function might

violate the right to equality.

(5)
In subsection (3) “Parliament” does not include the House of Lords in its judicial

capacity.

(6)
In relation to a particular act, a person is not a public authority by virtue only of

subsection (3)(b) if the nature of the act is private.

Public Bill Committee: 18 June 2009
223

Equality Bill, continued

(7)
“An act” includes a failure to act but does not include a failure to—

(a)
introduce in, or lay before, Parliament a proposal for legislation; or

(b)
make any primary legislation or remedial order.’.

Statements of compatibility

Lynne Featherstone

Dr Evan Harris

NC15

To move the following Clause:—

‘(1)
A Minister of the Crown in charge of a Bill in either House of Parliament must,

before the second reading of the Bill—

(a)
make a written statement to the effect that in his or her view the

provisions of the Bill are compatible with the right to equality (“a

statement of compatibility”); or

(b)
make a statement to the effect that although he or she is unable to make

a statement of compatibility the Government nevertheless wishes the

House to proceed with the Bill.

(2)
The statement must be published.’.

Proceedings

Lynne Featherstone

Dr Evan Harris

NC16

To move the following Clause:—

‘Sections 7, 8 and 9 of the Human Rights Act 1998 shall have effect in relation to

acts made unlawful by section [Public authorities] (1) of this Act as if the act

complained of were made unlawful by section 6(1) of the Human Rights Act

1998.’.

Power to take remedial action

Lynne Featherstone

Dr Evan Harris

NC17

To move the following Clause:—

‘Sections 10 of the Human Rights Act 1998 shall have effect in relation

provisions of legislation declared under section [Declaration of incompatibility]

of this Act to be incompatible with the right to equality as if the provisions had

Public Bill Committee: 18 June 2009
224

Equality Bill, continued

been declared incompatible with a Convention right under section 4 of the Human

Rights Act 1998.’.

Member’s explanatory statement

Clauses to establish an equality guarantee.

Assistance with human rights

Mr Tim Boswell

NC18


To move the following Clause:—

‘The Equality and Human Rights Commission may assist any person (or group of

persons with similar characteristics), whether or not they have a relevant

protected characteristic, if it deems it appropriate and necessary in order to protect

the human rights of that person or persons.’.

Volunteers

Mr Tim Boswell

NC19


To move the following Clause:—

‘For the avoidance of doubt, with the exclusion of matters related to

remuneration, all rights of employees under this Act are deemed to extend to

persons who work as volunteers without remuneration; and all duties of

employees and their employers to avoid discrimination are deemed to extend to

volunteers working without remuneration.’.

Prohibited pre-employment inquiries

Mr David Drew

NC20


To move the following Clause:—

‘(1)
A person (A) subjects a disabled job applicant (B) to prohibited employment

enquiries where (A) makes inquiries of (B) as to whether (B) is a disabled person

or as to the nature or severity of such disability.

(2)
Inquiries of a disabled person as to the existence, nature or severity of their

disability will not constitute prohibited pre-employment inquiries for the

purposes of this Act where—

(a)
the inquiry is for the purpose of determining whether an applicant

requires reasonable adjustments for the interview process and is stated as

being such an inquiry;

Public Bill Committee: 18 June 2009
225

Equality Bill, continued

(b)
the inquiry is made at the application stage for the purposes of monitoring

disabled applicants, where such inquiry is made in writing, is kept

separately from any application form, is anonymised, and is stated as

being such an inquiry;

(c)
for the purposes of positive action in recruitment, such as offering the

guaranteed interview scheme, and is stated as being such an inquiry.

(3)
Any invitation to request reasonable adjustments or disclose a disability under

subsection (2)(a), (b) and (c) must specify the use that will be made of that

information and must state that there is no requirement to provide that

information.

(4)
Information provided must only be used for the stated purpose.

(5)
Inquiries of a disabled person as to the existence, nature or severity of their

disability will not constitute prohibited pre-employment inquiries for the

purposes of this Act where the inquiry is necessary for the purposes of

determining whether an applicant can perform a specific employment-related

function, either with or without adjustments and is stated as being such an

inquiry.’.

Employees and applicants: prohibited pre-employment inquiries

Mr David Drew

NC21


To move the following Clause:—

‘An employer (A) must not subject a disabled job applicant (B) to prohibited

employment inquiries.’.

Order of the House [11 MAY 2009]

That the following provisions shall apply to the Equality Bill:

Committal

1.
The Bill shall be committed to a Public Bill Committee.

Proceedings in Public Bill Committee

2.
Proceedings in the Public Bill Committee shall (so far as not previously

concluded) be brought to a conclusion on 7 July 2009.

3.
The Public Bill Committee shall have leave to sit twice on the first day on

which it meets.

Consideration and Third Reading

4.
Proceedings on consideration shall (so far as not previously concluded) be

brought to a conclusion one hour before the moment of interruption on the

day on which those proceedings are commenced.

5.
Proceedings on Third Reading shall (so far as not previously concluded) be

brought to a conclusion at the moment of interruption on that day.

6.
Standing Order No. 83B (Programming committees) shall not apply to

proceedings on consideration and Third Reading.